Excerpted from HotAir.com
The quickest way to catch you up on the procedural history here is to have you read this post from January, when the USPTO denied a trademark to a company that wanted to call its snack food Washington Football Team Hog Rind.” The NFL’s ‘Skins have actually had their mark canceled on “disparagement” grounds once before, in 1999, but that decision ended up being overturned in federal court on a procedural technicality. A group of Native Americans decided to have a second go at a suit a few years ago, and now here we are.
They had to show not only that the team’s name is disparaging, but that it was disparaging at the time the trademark was granted. Held: Bye bye, Washington Football Team.”
The team’s intent in using the name doesn’t matter. It’s what a “substantial composite” of the group implicated by the mark perceives. Follow the last link and scroll down to page 81 for the dissent, which argues that the historical evidence is simply too equivocal to find that Washington Football Team” was disparaging when the mark was first granted. (Arguably true!) The ruling doesn’t mean the team can’t use the name, just that they can’t stop unlicensed manufacturers from using the name on their own merchandise. Soon you’ll be able to sell your very own ‘Skins gear if you like, and Dan Snyder will lose tens or even hundreds of millions of bucks in the process. But not just yet: An appeal will follow, as it did in 1999, which means the trademark will remain in effect for years to come while the litigation plays out. Assuming, of course, Snyder doesn’t drop Washington Football Team” first.
“Disparagement” is interesting grounds for canceling a mark. After all, in theory, the market should be able to handle the problem. If Snyder changed the team’s name to, say, the “Washington Blackskins,” the economic backlash would be sufficiently swift and stern that you wouldn’t need the USPTO to convince him to change his mind. Empowering the agency to cancel a mark is sort of the intellectual property equivalent of civil rights legislation: It lets the government step in and sanction a business on behalf of people who may not have enough political or economic clout to force the change otherwise. Is that true of Native Americans, though, given the number of Senate Democrats who are now invested in this issue? Is it also true that the term Washington Football Team” brings Native Americans “into contempt or disrepute”? The weird thing about Washington Football Team” is that it’s so closely associated with football and the team in the public’s mind, I think, that over time the sports meaning has completely overtaken the racially derogatory meaning. If someone walked up to you today and said “What do you think of the Washington Football Team?”, you’d assume without a second thought that he was asking you about the NFC East, not casually slurring Native Americans. Hard to argue that the word’s “disparaging” in that context. On the other hand, if you let the mark stand for that reason, then theoretically “Washington Blackskins” would and should also stand as long as it’s been in use for a long enough time that the underlying racial meaning has basically melted away. The USPTO wouldn’t go for that, so Washington Football Team” has to fall. Not because it’s actually disparaging but for reasons of simple consistency.
